[Introduced February 15, 2012; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7 and §49-6F-8,
all relating to establishing the Office of Child Advocacy;
defining terms; providing powers and duties of the Office of
Child Advocacy; providing qualifications, term of office and
salary of the director; granting authority for the director to
hire staff; providing the Director and staff of the Office of
Child Advocacy to investigate and monitor the Division of
Child Protective Services and Division of Juvenile Services;
authorizing access by Office of Child Protective Services and
certain Division of Corrections records and information;
allowing communication with children involved in Child
Protective Services investigations and in the custody of the
Division of Juvenile Services; providing for confidentiality
of certain information; and granting immunity to office from
liability in specified circumstances.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7 and §49-6F-8, all
to read as follows:

ARTICLE 6F. OFFICE OF CHILD ADVOCACY.

§49-6F-1. Purpose.

The Legislature is committed to providing for the well being
of children and families of the State of West Virginia. Securing
a future for some of our most vulnerable citizens, those involved
in abuse and neglect proceedings and those with behavioral health
problems, has proven to be a daunting and on-going effort for the
Legislature. Further, disposition of these children to assure state
resources are being maximized towards assisting these children as
they enter into adulthood is a vital government function, therefore
the Legislature creates the Office of Child Advocacy. The director
is charged with coordinating efforts on behalf of children and
families involved in the state system; to work with advocacy groups;
to advocate and promote systematic reforms; and to recommend changes
in law, policy, rule or procedure necessary to enhance the
protection of children and families involved in abuse and neglect
and foster care matters, and advance proper and effective management
of behavioral health services for children.

§49-6F-2. Definitions.

In this article:

(1) “Child or children” means a person or persons yet to attain
the age of eighteen years, or a person who has attained the age of
eighteen years or older when jurisdiction of the agency over that
person is continued as a result of agency jurisdiction over that
person when he or she was under the age of eighteen years.

(2) “Child abuse and neglect” means child abuse and neglect as
those terms are defined in section three, article one of this
chapter.

(3) “Child Fatality Review Team” means the Child Fatality
Review Team as established by section five, article five-d of this
chapter.

(4) “Child Protective Services” means the state agency within
the Department of Health and Human Resources charged with the
responsibility for review, investigation and placement of children
involved in child abuse and neglect matters established in article
six-a, chapter forty-nine of this code.

(5) ”Director” means the Director of the Office of Child
Advocacy.

(6)“Division of Juvenile Services” means the state agency
within the Department of Military Affairs and Public Safety charged
with the responsibility for juvenile detention and corrections as
provided by article five-e of this chapter.

(7) “Multidisciplinary team” means the multidisciplinary team
as defined by section three, article one of this chapter.

(8) “Office” means the Office of Child Advocacy.

(9) “Secretary” means the Secretary of the Department of Health
and Human Resources.

§49-6F-3. Office of Child Advocacy created to monitor child
protective services and Division of Juvenile
Services; office to be independent.

(a) There is created the Office of Child Advocacy to promote
public awareness and understanding of Child Protective Services and
the Division of Juvenile Services, to monitor and ensure compliance
with administrative acts, relevant statutes, legislative rules and
internal policies pertaining to Child Protective Services and the
Division of Juvenile Services and the investigations, placement,
supervision and treatment of children in child abuse and neglect
cases, foster care and placement, treatment and state operated and
contracted youth and social services, including treatment of those
children with behavioral health issues.

(b) The director reports directly to the Governor.

(c) The Office of Child Advocacy and the staff of the office
is independent of the Department of Health and Human Resources.
Neither agency may prevent, inhibit or prohibit the office from
initiating, carrying out or completing any investigation, review or
other activity within the office’s statutory duties and deemed
necessary by the director.

§49-6F-4. Appointment; qualifications; term of office.

(a) The Office of Child Advocacy is under the direct
supervision of the director. The director is the executive and
administrative head of the office and shall be appointed by the
Governor with the advice and consent of the Senate. The director
shall be qualified by training and experience to direct the
operations of the Office of Child Advocacy.

(b) The director:

(1) Shall serve on a full-time basis;

(2) May not hold political office in the government of the
state either by election or appointment while serving as director;

(3) Shall be a citizen of the state;

(4) Is entitled to receive an annual salary as provided by the
Governor; and

(5) Is exempt from coverage under the classified service as
provided in section four, article six, chapter twenty-nine of this
code.

(c) The director shall hold office for a term of three years
and shall continue to hold office until reappointed or until a
successor is appointed. The Governor may remove the director only
for neglect of duty, misconduct or inability to perform duties. Any
vacancy shall be filled by similar appointment for the remainder of
the unexpired term.

§49-6F-5. Powers and duties of the Office of Child Advocacy;
hiring of staff.

(a) The powers and duties of the director include, but are not
limited to:

(1) Reviewing, monitoring and investigation of the performance
of services for children as rendered by the state, foster care and
placement, treatment, and state operated and contracted youth and
social services, including housing of status offenders and treatment
of children with behavioral health issues;

(2) Inspection and review of the operations, policies and
procedures of foster homes, group homes, residential treatment
facilities, shelters for the care of abused or neglected children,
facilities and programs for children with behavioral health issues
or any other public or private residential setting in which a child
has been placed by the state.

(3) Intervention in disposition orders and placements, by
petition to the court for hearings for modification of a
dispositional order as authorized by section fourteen, article five,
chapter forty-nine of this code when the director believes the best
interests of a juvenile are not reflected in the disposition order.
The presiding court shall consider the petition and at the
discretion of the court may revise or modify the order accordingly.
The director may appeal any such order.

(4) Reporting to the Legislative Oversight Commission on Health
and Human Resources Accountability annually by December 31 of each
calendar year, concerning the state of each state entity’s specific
duties in child abuse and neglect matters, and provide
nonconfidential information and assistance to the commission as it
may otherwise request;

(5) Acting as a neutral and nonadversarial arbiter in disputes
between citizens and the Division of Child Protective Services and
the Division of Juvenile Services;

(6) Making recommendations to the Governor for legislative or
administrative changes designed to improve the state’s performance
in responding to child abuse and neglect cases as well as the
prosecuting attorney and judiciary’s role in the protection of
children from child abuse and child neglect, and for the housing and
treatment of adjudicated delinquent youth;

(7) Reviewing, evaluating, reporting on and making
recommendations concerning the procedures established by the state
in providing services to children who are at risk of abuse or
neglect, in the custody of the state or any child who receives Child
Protective Services and the Division of Juvenile Services;

(8) Reviewing, evaluating, reporting on and making
recommendations concerning the selection, assistance and monitoring
of foster care homes, to assure proper placement and services to
children placed in foster homes;

(9) Reviewing, evaluating, reporting on and making
recommendations concerning whether kinship care providers should be
the preferred process in providing services to children, in the
manner adopted by federal law, who are at risk of abuse or neglect,
in the custody of the state or any child who receives Child
Protective Services and the Division of Juvenile Services;

(10) Remaining knowledgeable and informed regarding current
law, changes in the law and trends in the law relating to child
abuse, child neglect and juvenile services and to answer queries
from the public regarding same;

(11) Remaining knowledgeable and informed concerning the
state’s administrative practices, procedures and policies as they
relate to the protection of children;

(12) Filing legal actions in abuse and neglect cases and for
issues arising from disposition of adjudicated juvenile delinquents,
including, but not limited to, actions in mandamus, prohibition or
declaratory judgment actions that seek to require governmental
officials to perform necessary activities to adequately serve and
protect children or to prohibit those officials from engaging in
actions that are counterproductive to the protection and welfare of
children;

(13) Dissemination of information to the public on the
objectives of the office, the services the office provides and the
methods by which the office may be contacted, including, but not
limited to, a toll-free telephone number to receive and respond to
calls from citizens and a web page describing the services available
through the office;

(14) Aiding the Governor and the Legislature in proposing
methods of achieving increased coordination and collaboration amongstate agencies and entities, including the judiciary, to ensure
maximum effectiveness and efficiency in the provision of services
to children;

(15) Providing necessary training and technical assistance to
Child Protective Services, Division of Juvenile Services prosecuting
attorneys and the judiciary on issues relevant to the performance
of their respective duties with regard to child abuse and child
neglect;

(16) Applying for and accepting grants, gifts and bequests of
funds from other entities, states, federal and interstate agencies
for the purpose of carrying out the lawful responsibilities of the
Office of Child Advocacy; and

(17) Doing all necessary activities intended to improve the
Child Protective Services Division and the Division of Juvenile
Services.

(b) The director may appoint an adequate number of staff to
properly perform the duties of the office. The total compensation
of the staff shall be within the limits of the amounts appropriated
by the Legislature for personal services of the office. All staff
shall serve at the will and pleasure of the director.

(6) All records of child fatality review teams created pursuant
to section five, article five-d of this chapter; and

(7) All state institutions serving children and state licensed
facilities or residences for the purposes of carrying out this
article.

(b) The director may communicate privately, by mail or orally,
with any child who is the subject of a Child Protective Services
investigation, or otherwise in the custody of the Department of
Health and Human Services;

(c) All records of the office pertaining to the care and
treatment of a child shall remain confidential and are subject to
the same confidentiality requirements as set forth in section one,
article seven of this chapter. These records are not subject to any
method of legal compulsion without a showing of good cause by the
circuit or family court. Information contained in the records may
not be disclosed publicly in any manner that would disclose
identifying information about complainants or witnesses. The records
are exempt from the Freedom of Information Act as provided by
chapter twenty-nine-b of this code.

(a) Neither the director nor the staff of the Office of Child
Advocacy may be compelled in any judicial or administrative
proceeding to testify or produce evidence regarding the exercise of
the official duties of the director. All related memoranda, work
product, notes and case files of the office are confidential, not
subject to discovery, judicial or administrative subpoena or other
method of legal compulsion and are not admissible as evidence in a
judicial or administrative proceeding.

(b) The privilege described in subsection (a) of this section
does not apply when:

(1) The office has direct knowledge of an alleged crime and the
testimony, evidence or discovery sought is relevant to that
allegation;

(2) The office has received a threat of, or becomes aware of
a risk of, imminent serious harm to any person, and the testimony,
evidence or discovery sought is relevant to that threat or risk; or

(3) The director has been asked to provide general information
regarding the general operation of or the general processes employed
at his or her office.

§49-6F-8. Immunity from liability for good faith performance of duties.

(a) An employee of the Office of the Child Advocacy is not
liable for good faith performance under this article.

(b) No discriminatory, disciplinary or retaliatory action may
be taken against an employee of the state, an employee of a
contracting agency of the state, a foster parent or a recipient of
service from Child Protective Services or Division of Juvenile
Services for any communication made, or information given or
disclosed, to aid the Office of Child Advocacy in carrying out its
responsibilities, unless the communication or information is made,
given or disclosed maliciously or not in good faith.

(c) All communications by the employees of the Office of Child
Advocacy if reasonably related to the requirements of this section
and done in good faith are privileged. This privilege serves as a
defense in any action brought in libel or slander.

NOTE: The purpose of this bill is to establish the Office of
Child Advocacy. The bill defines terms. The bill sets forth the
powers and duties of the Office of Child Advocacy, including
charging the director to evaluate the federal kinship care providers
process as a preferred procedure, and provides the qualifications,
term of office and salary of its director. The bill grants
authority for the director to hire staff. Also, the bill provides
the Director and staff of the Office of Child Advocacy to
investigate and monitor the Division of Child Protective Services
and Division of Juvenile Services. The bill authorizes access by
office of Child Protective Services and certain Division of
Corrections to records and information. The bill allows
communications with children involved in Child Protective Services
investigations and in the custody of the Division of Juvenile
Services. The bill further provides for confidentiality of certain
information and grants immunity to office from liability in
specified circumstances.

This article is new; therefore, strike-throughs and
underscoring have been omitted.